Constitutional conflicts and aboriginal rights: hunting, fishing and gathering rights in Canada, New Zealand and the United States

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dc.contributor.advisor David V. Williams en
dc.contributor.author Charlton, Guy en
dc.date.accessioned 2010-01-17T20:35:57Z en
dc.date.available 2010-01-17T20:35:57Z en
dc.date.issued 2010 en
dc.identifier.citation Thesis (PhD--Law)--University of Auckland, 2009. en
dc.identifier.uri http://hdl.handle.net/2292/5624 en
dc.description.abstract Judicial resolution of non-aboriginal conflicts was crucial to the vindication of indigenous rights within the new state as the determination of the nature and quality of aboriginal legal interests and entitlements involved fundamental questions of land ownership, secure legal title for settler alienation, as well as governmental priority and competence. If not for these disputes, court decisions and common law doctrine solicitous of indigenous interests based on the idea of indigenous occupancy, use and possession of their territory, and the creation of law based on colonial and imperial policy -- which incorporated notions of indigenous sovereignty and supported pluralist legal relations -- would have been discarded by the courts due to the underlying dynamism and logic of colonialism. Using a recent judicial decision by the highest court in each jurisdiction as a window to discuss the various approaches courts have taken to usufructuary rights, this thesis discusses the major components of the legal doctrine of hunting, fishing and gathering rights in Canada, New Zealand and the United States. It argues that the judicial protection of these aboriginal or treaty rights have been profoundly affected by non-aboriginal disputes over the constitution and the nature of national polity. At the same time the analysis suggests that values ―external to the law are not the sole determinant of judicial outcomes over time. Rather in certain instances the legal doctrine and decisions implicate values inherent to the legal system, such as a conceptual commitment to a logical internal structure, a respect for precedent and previous governmental policy as well as the principle that courts are disinterested dispensers of neutral justice. These internal values comingle with deep-seated commitments held by individual decision-makers and the judiciary more generally, regarding the constitutional structure of the state and the role of the judiciary. en
dc.publisher ResearchSpace@Auckland en
dc.relation.ispartof PhD Thesis - University of Auckland en
dc.relation.isreferencedby UoA1946939 en
dc.rights Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated. en
dc.rights.uri https://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm en
dc.rights.uri http://creativecommons.org/licenses/by-nc-sa/3.0/nz/ en
dc.title Constitutional conflicts and aboriginal rights: hunting, fishing and gathering rights in Canada, New Zealand and the United States en
dc.type Thesis en
thesis.degree.discipline Law en
thesis.degree.grantor The University of Auckland en
thesis.degree.level Doctoral en
thesis.degree.name PhD en
dc.date.updated 2010-01-17T20:36:08Z en
dc.rights.holder Copyright: The author en
pubs.local.anzsrc 18 - Law and Legal Studies en
dc.rights.accessrights http://purl.org/eprint/accessRights/OpenAccess en
pubs.org-id Faculty of Law en


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